Tresa Byrd v. State

• Court: Court of Appeals of Texas
• Decided: November 15, 2007
• Docket: 03-07-00584-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00584-CR Tresa Denise Byrd, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. D-1-DC-06-302760, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Tresa Byrd seeks to appeal an order revoking community supervision. The court has certified that this is a plea-bargain case and Byrd has no right of appeal.

If a defendant plea bargains for community supervision, rule 25.2(a)(2) restricts the right of appeal from the conviction, but it does not restrict the defendant's right of appeal following a subsequent revocation of supervision. Tex. R. App. P. 25.2(a)(2); Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998). This is true even if the defendant pleaded "true" to the allegations in the motion to revoke, because rule 25.2(a)(2) refers only to plea bargains with regard to pleas of guilty and no contest. Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005); see also Gutierrez v. State, 108 S.W.3d 304-309-10 (Tex. Crim. App. 2003) (holding that plea bargain recommendation is not binding on trial court at revocation hearing). We cannot determine from the documents forwarded to the Court with the notice of appeal whether the plea bargain referred to in the trial court's certification was at the original trial or at the revocation hearing, but in either event, it does not restrict Byrd's right of appeal from the revocation order.

The appeal is abated. The trial court is instructed to prepare and file an amended certification. Dears, 154 S.W.3d at 614. Unless Byrd waived her right of appeal, this certification should state that this is not a plea-bargain case, and the defendant has the right of appeal. If necessary, the court shall appoint counsel and order the preparation of a free appellate record. A copy of the amended certification and of the order appointing counsel, if made, shall be forwarded to the Clerk of this Court no later than fifteen days from the date of this opinion.

__________________________________________

David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Abated

Filed: November 15, 2007

Do Not Publish